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1 PLEASE TAKE NOTICE that, on June 25, 2009 at 2:30 p.m., before Chief Judge
2 Vaughn R. Walker, the Government Defendants sued in their official capacity in this action will
3 move to dismiss certain claims in the Complaint against them pursuant to Rule 12(b)(1) of the
4 Federal Rules of Civil Procedure, and for summary judgment as to any remaining claims
5 pursuant to Rule 56. The grounds for this motion are that the Court lacks subject matter
6 jurisdiction with respect to plaintiffs' statutory claims against the United States because
7 Congress has not waived sovereign immunity, and summary judgment for the Government on all
8 of plaintiffs' remaining claims against all parties (including any claims not dismissed for lack of
9 jurisdiction) is required because information necessary to litigate plaintiffs' claims is properly
10 subject to and excluded from use in this case by the state secrets privilege and related statutory
11 privileges. The grounds for this motion are set forth further in the accompanying (i)
12 Memorandum of Points and Authorities in Support of the Government Defendants' Motion to
13 Dismiss and for Summary Judgment; (ii) Public Declaration of Admiral Dennis C. Blair,
14 Director of National Intelligence (hereafter "Public DNI Decl."); (iii) Public Declaration of
15 Deborah A. Bonanni, Chief of Staff, National Security Agency (hereafter "Public NSA Decl.").
16 Additional grounds for these motions are also set forth in the (iv) Classified State Secrets
17 Privilege Declaration of Dennis C. Blair, Director of National Intelligence; (v) Classified
18 Declaration of Deborah A. Bonanni, Chief of Staff, National Security Agency; and (vi)
19 Supplemental Classified Memorandum of Points and Authorities in Support of the Government
20 Defendants' Motion to Dismiss and for Summary Judgment. These classified materials have
21 been lodged with court security officers and are available upon request solely for the Court's in
22 camera, ex parte review.
23 April 3, 2009 Respectfully Submitted,
24 MICHAEL F. HERTZ
Acting Assistant Attorney General
25
DOUGLAS N. LETTER
26 Terrorism Litigation Counsel
27
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW 2

Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 11 of 36
INTRODUCTION
1
Plaintiffs in this action allege that the Government, through the National Security Agency
2
("NSA"), is undertaking an "illegal and unconstitutional dragnet communications surveillance in
3
concert with major telecommunications companies," and that NSA has indiscriminately
4
intercepted the content of communications, as well as the communications records, of millions of
5
ordinary Americans. See Complaint � 1, 7; see also id. �� 9-11; 73-75; 82-97.
6
This is not the first instance in which these allegations have been before this Court. The
7
plaintiffs in this case (it appears with one exception) are the same plaintiffs who filed the
8
Hepting action against AT&T raising identical allegations. See Hepting v. AT&T, 493 F. Supp.
9
2d 974 (N.D. Cal. 2006). Plaintiffs now bring a seventeen-count complaint against the United
10
States and Government officials in their official capacity, claiming that the alleged actions
11
violate the First and Fourth Amendments of the United States Constitution, and the separation of
12
powers doctrine, as well as various statutory provisions--Section 109 of the Foreign Intelligence
13
Surveillance Act of 1978 ("FISA"), 50 U.S.C. � 1809; the Wiretap Act, as amended by the
14
Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. � 2511(1)(a), (1)(c), (1)(d) and
15
(3)(a); and the Stored Communications Act ("SCA"), 18 U.S.C. � 2703(a), (b), and (c).1
16
As a threshold matter, the Court should dismiss plaintiffs' statutory claims against the
17
Government Defendants in their official capacity for lack of subject matter jurisdiction because
18
Congress has not waived sovereign immunity. This leaves plaintiffs with, at most, constitutional
19
claims for declaratory and injunctive relief against the United States. These claims cannot
20
proceed as well--indeed, none of plaintiffs' claims could proceed against any
21
defendant--because, at every stage, litigation plaintiffs' claims would require or risk the
22
23
1
24 A summary of plaintiffs' claims is attached as Exhibit 1. Plaintiffs also sue NSA
Director Alexander and several former officials in their personal capacity, see Compl. �� 26,
25 29-31, 33-37 and Counts I-VIII; X-XI; XIII-XIV; XVI-XVII. This motion is brought solely by
26 the Government Defendants sued in their official capacity. However, as set forth herein, the
Government's proper invocation of the state secrets and applicable statutory privileges also
27 excludes information relevant to addressing the personal capacity claims and requires summary
judgment and dismissal of all personal capacity claims as well.
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 12 of 36
disclosure of information that is properly subject to the state secrets privilege and related
1
statutory privileges.
2
This lawsuit squarely puts at issue whether, or to what extent, the Government utilized
3
certain intelligence sources and methods after the 9/11 attacks. As in Hepting, the Director of
4
National Intelligence ("DNI") has once again demonstrated that the disclosure of the information
5
implicated by this case, which concerns how the United States seeks to detect and prevent
6
terrorist attacks, would cause exceptionally grave harm to national security. See Public and
7
Classified In Camera, Ex Parte Declarations of Dennis C. Blair, Director of National
8
Intelligence. The information subject to the DNI's privilege assertion should therefore be
9
excluded from this case. In addition, because disclosure of the privileged information would be
10
required or at risk in further proceedings, the Court should grant summary judgment for the
11
United States on all of plaintiffs' claims and dismiss this case against all defendants.
12
While the dismissal of private claims is a significant step, long-standing authority holds
13
that "the greater public good" is the protection of the national security interests of the United
14
States. Kasza v. Browner, 133 F.3d 1159, 1167 (9th Cir. 1998) (quoting Bareford v. Gen.
15
Dynamics Corp., 973 F.2d 1138, 1144 (5th Cir. 1992)).
16
ARGUMENT
17
I. CONGRESS HAS NOT WAIVED SOVEREIGN IMMUNITY FOR PLAINTIFFS'
18 STATUTORY CLAIMS.
19 "Absent a waiver, sovereign immunity shields the Federal Government and its agencies
20 from suit." Dep't of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (quoting F.D.I.C. v.
21 Meyer, 510 U.S. 471, 475 (1994)). Plaintiffs bear the burden of establishing such a waiver, see
22 Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992), which must be explicitly and
23 unequivocally expressed in statutory text. See Lane v. Pena, 518 U.S. 187, 192 (1996); Sigman
24 v. United States, 217 F.3d 785, 792 (9th Cir. 2000). This Court should "strictly construe[]" any
25 purported waiver "in favor of the sovereign," Blue Fox, 525 U.S. at 261, and a statute does not
26 waive sovereign immunity if it will bear any "plausible" alternative interpretation. See United
27 States v. Nordic Village, Inc., 503 U.S. 30, 33-37 (1992).
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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As set forth below, in the Wiretap Act and ECPA, Congress expressly preserved
1
sovereign immunity against claims for damages and equitable relief, permitting such claims
2
against only a "person or entity, other than the United States." See 18 U.S.C. � 2520; 18 U.S.C.
3
� 2707. Plaintiffs attempt to locate a waiver of sovereign immunity in other statutory provisions,
4
primarily through a cause of action authorized by the Stored Communications Act, 18 U.S.C.
5
� 2712, but this attempt fails. Section 2712 does not erase the express reservations of sovereign
6
immunity noted above, because it applies solely to a narrow set of allegations not presented here:
7
where the Government obtains information about a person through intelligence-gathering, and
8
Government agents unlawfully disclose that information. Likewise, the Government preserves
9
its position that Congress also has not waived sovereign immunity under in FISA to permit a
10
damages claim against the United States. See 50 U.S.C. � 1810.
11
Plaintiffs' claims for equitable relief under Section 702 of the Administrative Procedure
12
Act ("APA") and the Supreme Court's decision in Larson v. Domestic & Foreign Commerce
13
Corp., 337 U.S. 682 (1949), fare no better. First, Section 702 does not provide an equitable
14
remedy when another statute explicitly or implicitly forbids such relief. Second, plaintiffs
15
cannot proceed without a waiver of sovereign immunity Larson, because Congress has explicitly
16
forbidden equitable relief, and the relief plaintiffs seek would run against the United States.
17
A. Congress Has Not Waived Sovereign Immunity as to Plaintiffs'
18 Claims for Damages.
19 Plaintiffs seek damages against the United States under the Wiretap Act and ECPA, as
20 well as FISA (Counts VI, IX, XII, and XV), but can establish no waiver of sovereign immunity
21 for these claims.
22 1. Congress Has Expressly Preserved Sovereign Immunity For
Plaintiffs' Wiretap Act and ECPA Claims.
23
Congress has expressly barred suits against the United States for damages and equitable
24
relief based on alleged violations of the Wiretap Act and ECPA, in both cases by permitting
25
relief against only a "person or entity other than the United States." See 18 U.S.C. � 2520(a); 18
26
U.S.C. � 2707(a). Congress enacted these express reservations of sovereign immunity in Section
27
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 14 of 36
223 of the Patriot Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. See � 223(a)(1), (b)(1)
1
(inserting the words "other than the United States."). Plaintiffs' apparent theory--that another
2
provision of Section 223 of the Patriot Act, codified in 18 U.S.C. � 2712, provides the requisite
3
waiver of sovereign immunity for plaintiffs' Wiretap Act and ECPA claims, see Compl., Counts
4
IX, XII, XV--is meritless. Such a theory depends on the assumption that Congress, in the same
5
Act, expressly reserved sovereign immunity in Sections 2520(a) and 2707(a) for Wiretap Act
6
and ECPA claims, and expressly waived sovereign immunity for those claims in Section 2712(a).
7
Such a construction would use one provision of an Act to "emasculate . . . entire section[s]"
8
elsewhere in the Act, see United States v. Menashe, 348 U.S. 528, 538-39 (1955), and thereby
9
violate the "cardinal principle of statutory construction" that courts must "give effect, if possible,
10
to every clause and word of a statute," rather than rendering any section "superfluous." Duncan
11
v. Walker, 533 U.S. 167, 174 (2001) (collecting cases) (internal quotations omitted).
12
In fact, all of the provisions enacted in Section 223 of the Patriot Act can be read
13
harmoniously. As noted, 18 U.S.C. � 2520(a) (Section 223(a)(1)) generally precludes suits
14
against the United States for claims arising under the Wiretap Act, Chapter 119 of Title 18.
15
Similarly, 18 U.S.C. � 2707(a) (Section 223(b)(1)) precludes suits against the United States for
16
conduct that constitutes a "knowing or intentional" violation of ECPA, Chapter 121 of Title 18.
17
Finally, 18 U.S.C. � 2712 (Section 223(c)(1)) creates a narrow exception to these provisions,
18
waiving sovereign immunity for damages suits against the United States solely for certain
19
"willful violation[s]" of the Wiretap Act, ECPA, and specific provisions of FISA--all of which
20
concern willful disclosures of information by Government agents, not alleged or at issue here.
21
This construction of Section 223 is supported by reading "the statute as a whole,
22
including its object and policy," not by reading any one provision in isolation.2 See Children's
23
Hosp. Health Ctr. v. Belshe, 188 F.3d 1090, 1096 (9th Cir. 1999); see also Holloway v. United
24
States, 526 U.S. 1, 7 (1999); United States v. Morton, 467 U.S. 822, 828 (1984). Section 223 is
25
entitled "Civil Liability For Certain Unauthorized Disclosures," and the text of the statute makes
26
27 2
The text of Section 223 of the Patriot Act is attached as Exhibit 2.
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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clear that Congress intended its provisions, including the provision codified in 18 U.S.C. � 2712,
1
to afford relief only where Government agents make unauthorized disclosures of information
2
obtained through surveillance.
3
Accordingly, Section 223(a)(3) amended the Wiretap Act to state that "[a]ny willful
4
disclosure or use by an investigative or law enforcement officer or governmental entity of
5
information beyond the extent permitted by [the Wiretap Act] is a violation . . . of [the Act]."
6
See 18 U.S.C. � 2520(g). Similarly, Section 223(b)(3) amended ECPA to state that "[a]ny
7
willful disclosure of a `record'. . . obtained by an investigative or law enforcement officer, or a
8
governmental entity, pursuant to 2703 of this title . . . that is not a disclosure made in proper
9
performance of the official functions of the officer or governmental entity making the disclosure,
10
is a violation of [ECPA]." See 18 U.S.C. � 2707(g). And Section 223(c)(1) added 18 U.S.C.
11
� 2712, providing for money damages against the United States for a "willful violation" of FISA,
12
the Wiretap Act, and ECPA. The phrase "willful violation" in Section 223(c)(1) (18 U.S.C.
13
� 2712) "gathers meaning" from the use of the term "willful" in its surrounding provisions. See
14
Jones v. United States, 527 U.S. 373, 389 (1999) (internal quotation omitted). In particular, a
15
"willful violation" in Section 223(c)(1) refers to the "willful disclosure" of intelligence
16
information by Government agents, as described by Section 223(a)(3) and (b)(3), and such
17
disclosures by the Government are the only actions that create liability against the United States.
18
Other provisions of Section 223 also address themselves to unauthorized disclosures by
19
Government agents. For example, Section 223(a)(2) and (b)(2) amended the Wiretap Act and
20
ECPA to provide for administrative discipline of Government agents who make such willful
21
disclosures. See 18 U.S.C. � 2520(f); 18 U.S.C. � 2707(d). Similarly, Section 223(c)(1)(a)
22
authorized suit against the United States for violations of specific sections of the FISA--sections
23
106(a), 305(a), and 405(a)--which also concern the use and disclosure by Federal officers of
24
information acquired from electronic surveillance, a physical search, or a pen register and trap
25
and trace device. See 18 U.S.C. � 2712(a) (authorizing suit for violations of 50 U.S.C.
26
�� 1806(a), 1825(a), 1845(a)). Each of these provisions demonstrates that the "object and
27
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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policy" of Section 223 was to impose liability for unauthorized disclosures of intelligence
1
information by Government agents. See Belshe, 188 F.3d at 1096.3
2
The legislative history of Section 223, though scarce, confirms that Section 2712(a) is
3
intended to authorize suit against the United States solely for such alleged unauthorized
4
disclosures by the Government. Section 223 was an amendment proposed by Representative
5
Barney Frank during the consideration of the Patriot Act before the House Committee on the
6
Judiciary. Citing the historical example of leaks by FBI Director J. Edgar Hoover against Dr.
7
Martin Luther King, Jr., Mr. Frank explained that when law enforcement agents
8
"inappropriate[ly] release . . . information garnered by surveillance," the victim of such leaks
9
should have "the right to go into Federal court under the Federal Tort Claims Act before a
10
federal judge and get damages from the Government." Administration's Draft Anti-Terrorism
11
Act of 2001: Hearing Before the H. Comm. on the Judiciary, 107th Cong. 17 (2001), Exh. 3.
12
The House Judiciary Committee approved the Frank amendment, recognizing that the
13
Amendment "provide[d] for actions against the United States" "for unlawful disclosures
14
obtained by [intelligence gathering]." H.R. REP. NO. 107-236(I), at 42 (2001), Exh. 4. Four
15
years later, when Congress reauthorized 18 U.S.C. � 2712 and other provisions in the Patriot
16
Act, it recognized that Section 2712 was limited to the "unauthorized disclosure of pen trap,
17
wiretap, stored communications or FISA information." H.R. REP. NO. 109-174(I), at 496 (2005),
18
Exh. 5.4
19
20
3
This harmonious reading of all the provisions of Section 223 of the Patriot Act not only
21 comports with proper statutory construction, see Duncan, 533 U.S. at 174; Belshe, 188 F.3d at
22 1096, but also with the Supreme Court's frequent admonition that courts should construe any
purported waiver of sovereign immunity "strictly" and "in favor of the sovereign." See Blue
23 Fox, 525 U.S. at 261; Lane, 518 U.S. at 192. Moreover, since there is a "plausible"
interpretation of 18 U.S.C. � 2712 that does not waive sovereign immunity, the Court should
24 adopt that interpretation. See Nordic Village, 503 U.S. at 33-37; Dep't of Army v. Fed. Labor
Relations Auth., 56 F.3d 273, 277 (D.C. Cir. 1995).
25
4
26 A Congressional Research Service summary of the Patriot Act likewise explained that
Section 223 "provide[s] for administrative discipline of Federal officers or employees who
27 violate prohibitions against unauthorized disclosures of information gathered under this Act" and
"[p]rovides for civil actions against the United States for damages by any person aggrieved by
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Thus, both the text and legislative history of Section 223 of the Patriot Act make clear
1
that a "willful violation" in 18 U.S.C. � 2712 means a willful, unauthorized disclosure of
2
information by a Government agent. Plaintiffs do not allege any such disclosures, and thus the
3
general reservations of sovereign immunity in 18 U.S.C. �� 2520(a) and 2707(a) control
4
plaintiffs' statutory claims for damages against the Government under Counts IX, XII, and XV.5
5
2. Congress Has Not Waived Sovereign Immunity
6 in FISA Section 1810.
7 Plaintiffs' final claim for damages against the United States is under FISA, where
8 plaintiffs assert that 50 U.S.C.� 1810 waives sovereign immunity (Count VI). Defendants
9 recognizes that the Court found an "[i]mplicit" waiver of sovereign immunity under 50 U.S.C.
10 � 1810 in Al-Haramain Islamic Foundation, Inc. v. Bush, 564 F. Supp. 2d 1109, 1124-25 (N.D.
11 Cal. 2008). But the Government respectfully disagrees with the Court's conclusion and, for the
12 record of this case, expressly reserve its position that Section 1810 contains no waiver of
13 sovereign immunity to bring a damages claim against the United States.6
14
15 such violations." CRS Summary, H.R. 3162 (Oct. 24, 2001), Exhibit 6.
16 5
Plaintiffs allege that the Government solicited, acquired, or received their
communications from telecommunications carriers, not that Government agents disclosed
17 intelligence information unlawfully (See Compl. �� 9-10, 13, 73-84, 90-97). Allegations that
18 third parties made disclosures to the Government do not establish that the Government made
unauthorized disclosures within the meaning of 18 U.S.C. � 2712. Moreover, nothing in any of
19 the statutes upon which plaintiffs base their claims creates liability against the United States for
allegedly aiding and abetting disclosures of third parties, and the Supreme Court has refused to
20 impose such secondary civil liability absent any "congressional direction to do so." Cent. Bank
of Denver v. First Interstate Bank, 511 U.S. 164, 183 (1994); see also id. at 177 ("If . . .
21 Congress intended to impose aiding and abetting liability, we presume it would have used the
22 words `aid' and `abet' in the statutory text."). The Ninth Circuit has followed Central Bank of
Denver by refusing to find a private cause of action under 18 U.S.C. � 2702 against those who
23 allegedly aid and abet, or conspire with, electronic communication service providers in
unlawfully disseminating the contents of electronic communications under ECPA. Freeman v.
24 DirecTV, 457 F.3d 1001, 1004-09 (9th Cir. 2006).
25 6
The Government briefed the sovereign immunity issue in the Al-Haramain action, see
26 Memorandum of Points and Authorities in Support of Defendants' Second Motion to Dismiss or
for Summary Judgment (Dkt. 17, Case No. 07-109-VRW) ("Defs. 2d MSJ Mem.") at 8-12; see
27 also Defendants' Reply in Support of Defendants' Second Motion to Dismiss or for Summary
Judgment (Dkt. 29, Case No. 07-109-VRW) ("Defs. 2d MSJ Reply") at 4-8.
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Sovereign immunity cannot be waived implicitly; waivers of sovereign immunity must
1
instead be explicit and unequivocal. See Multi Denominational Ministry of Cannabis v.
2
Gonzales, 474 F. Supp. 2d 1133, 1140 (N.D. Cal. 2007) (Walker, C.J.); see also Lane, 518 U.S.
3
at 192; Sigman, 217 F.3d at 792. Section 1810 creates a "cause of action against any person"
4
who violates the provisions of 50 U.S.C. � 1809.7 But Section 1810 does not mention suit
5
against the United States, and the United States is not a "person" within the meaning of the
6
statute. There is a "longstanding interpretive presumption that [the term] `person' does not
7
include the sovereign," Vermont Agency of Nat. Res. v. United States, 529 U.S. 765, 780 (2000)
8
(collecting cases), and the presumption may be overcome "only upon some affirmative showing
9
of statutory intent to the contrary." Id. FISA reveals no such intent. When Congress intends to
10
waive the sovereign immunity of the United States, it knows how to do so expressly. Cf. Touche
11
Ross & Co. v. Redington, 442 U.S. 560, 572 (1979); Central Bank, 511 U.S. at 176-77, 184.
12
Notably, Congress expressly authorized actions for damages "against the United States" as to
13
specific violations of FISA, see 18 U.S.C.� 2712--but not as to alleged violations of Section
14
1810. Without such an express waiver, plaintiffs' FISA claim may not proceed.
15
B. Congress Has Not Waived Sovereign Immunity for the
16 Equitable Relief Plaintiffs Seek under FISA, the Wiretap Act,
and ECPA.
17
Plaintiffs' statutory claims for equitable relief (see Compl., Counts V, VII, X, XIII, XVI)
18
fare no better. Again, plaintiffs' alleged bases for equitable relief for their Wiretap Act and
19
ECPA claims are 18 U.S.C. � 2520, and 18 U.S.C. � 2707, which expressly reserve sovereign
20
immunity by permitting claims only against a "person or entity, other than the United States."
21
18 U.S.C. �� 2520(a), 2707(a). Plaintiffs base another claim for equitable relief on Section
22
1809, 50 U.S.C. � 1809, but nowhere in FISA has Congress waived sovereign immunity for
23
equitable relief against the United States. And as discussed below, neither Section 702 of the
24
APA nor the Larson doctrine supply the basis for such relief.
25
26 7
FISA defines "person" to mean "any individual, including any officer or employee of
27 the Federal Government, or any group, entity, association, corporation, or foreign power." 50
U.S.C. � 1801(m).
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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1. APA Section 702 Does Not Waive Sovereign Immunity Where
1 Other Statutes Explicitly or Implicitly Bar Relief Against the
United States.
2
Section 702 of the APA provides a general waiver of sovereign immunity for suits
3
seeking equitable relief against the United States based on "agency action," see 5 U.S.C. � 702,
4
but Congress has also made clear that � 702 does not waive sovereign immunity "where some
5
other statute controls." Alaska v. Babbitt, 38 F.3d 1068, 1072-73 (9th Cir. 1994) (Babbitt I).
6
Section 702 emphasizes that "[n]othing herein . . . affects other limitations on judicial review
7
[or] . . . confers authority to grant relief if any other statute that grants consent to suit expressly
8
or impliedly forbids the relief which is sought." Id. Because Congress has expressly forbidden
9
relief for the plaintiff's Wiretap Act and ECPA claims (Counts VII, X, and XIII) by barring
10
equitable relief against the United States in Sections 2520(a) and 2707(a) of Title 18, these
11
specific and express reservations of sovereign immunity preclude jurisdiction under � 702 of the
12
APA. See Block v. North Dakota, 461 U.S. 273, 284-86 & n.22 (1983) (holding there is no
13
jurisdiction under � 702 when another statute expressly forbids relief by preserving sovereign
14
immunity); accord Alaska v. Babbitt, 75 F.3d 449, 451-53 (9th Cir. 1996) (Babbitt II); Hughes v.
15
United States, 953 F.2d 531, 537 (9th Cir. 1992).
16
In addition, the Supreme Court has held that "� 702 provides no authority to grant relief
17
when Congress has dealt in particularity with a claim and [has] intended a specified remedy to be
18
the exclusive remedy." Block, 461 U.S. at 284-86 & n.22 (quoting H. REP. NO. 94-1656 at 13
19
(1976)) (rejecting claims under � 702 because the Quiet Title Act provided the "exclusive
20
means" to challenge an action); accord Babbitt II, 75 F.3d at 452-53; Babbitt I, 38 F.3d at 1072-
21
73. Congress has provided such an exclusive remedy for claims under the Wiretap Act and
22
ECPA in 18 U.S.C. � 2712, which provides for damages only against the United States for
23
certain willful disclosures by Government agents, and makes clear that "an action against the
24
United States under this subsection shall be the exclusive remedy against the United States for
25
any claims within the purview of this section." 18 U.S.C. � 2712(d). Plaintiffs cannot evade this
26
exclusive damages remedy by seeking equitable relief under the APA, because "a precisely
27
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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drawn, detailed statute" such as Section 2712 "preempts more general remedies" under � 702.
1
See Block, 461 U.S. at 285; Babbitt II, 75 F.3d at 453.
2
Similarly, plaintiffs' claim for equitable relief under Section 702 of the APA for an
3
alleged violation of FISA (Compl., Count V) is also foreclosed. As outlined above, Congress
4
limited recovery for violations of Section 1809 by permitting recovery only against a "person,"
5
and limiting such recovery to damages and fees. See 50 U.S.C. � 1810. Section 1810 thus
6
forecloses equitable relief under � 702 of the APA for at least two reasons. First, by permitting
7
relief only for damages, � 1810 "impliedly forbids declaratory and injunctive relief and
8
precludes a � 702 waiver of sovereign immunity." See Tuscon Airport Auth. v. Gen. Dynamics
9
Corp., 136 F.3d 641, 646 (9th Cir. 1998) (holding the same for the Tucker Act) (internal
10
quotation omitted); accord North Side Lumber Co. v. Block, 753 F.2d 1482, 1484-85 (9th Cir.
11
1985). Second, by choosing to permit recovery only against a person, Congress implicitly
12
prohibited recovery against the United States. See supra Sec. I(A)(2).
13
Accordingly, the Court lacks subject matter jurisdiction to grant plaintiffs' claims for
14
equitable relief under FISA, the Wiretap Act, and ECPA pursuant to Section 702 of the APA.8
15
2. Larson Fails to Provide an Independent Basis for Equitable Relief.
16
Plaintiffs' reliance on Domestic and Foreign Commerce Corp. v. Larson to support their
17
statutory claims for equitable relief likewise fails. In Larson, the Supreme Court rejected the
18
notion that no waiver of sovereign immunity was required for a suit against a Government
19
official for acts he committed in his official capacities. 337 U.S. at 703. The Court went on to
20
observe in dicta that there may be certain circumstances where, if an officer of the United States
21
takes action that is unconstitutional or beyond his statutory authority, a suit against him for
22
equitable relief is not a suit against the sovereign, and no waiver of sovereign immunity is
23
necessary. See Larson, 337 U.S. at 689-90, 701-02. In the context of state sovereign immunity,
24
the Supreme Court has described Larson's ultra vires exception as "questionable," Pennhurst
25
26 8
Plaintiffs also bring a freestanding APA claim that is not tied to another statute (Count
27 XVI). This claim fails because � 702 of the APA "does not confer jurisdiction independent of
some other specific statute." Territory of Guam v. HHS, 997 F.2d 1290, 1292 (9th Cir. 1993).
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 21 of 36
State School & Hosp. v. Halderman, 465 U.S. 89, 116 n.27 (1984), and has emphasized that any
1
exception must be "very narrow" in order to preserve the principle of sovereign immunity. See
2
id. at 114 n.25. The narrow exception does not apply here.
3
First, as with plaintiffs' APA claims, Larson "provides no authority to grant relief,"
4
because Congress has created an exclusive remedy in 18 U.S.C. � 2712, and that statute's
5
"precisely drawn, detailed" provisions "preempt[] more general remedies" under Larson. See
6
Block, 461 U.S. at 284-86 & n.22; Babbitt II, 75 F.3d at 451-53. Second, even if Larson
7
provided an avenue for relief, plaintiffs cannot establish a Larson claim because "the effect of
8
the relief sought" would run against the United States. See Pennhurst, 465 U.S. at 107
9
(emphasis omitted). Plaintiffs allege that the equitable relief they seek would halt widespread
10
intelligence-gathering activity of the United States, and thus there is no question that plaintiffs
11
seek relief that "would . . . restrain the Government from acting, or . . . compel it to act," or
12
"interfere with the public administration." Pennhurst, 465 U.S. at 102 n.11 (quoting Dugan, 372
13
U.S. 609,620 (1963)); see also Hawaii v. Gordon, 373 U.S. 57, 58 (1963). The Ninth Circuit has
14
repeatedly dismissed such ultra vires theories. See Cent. Res. Life of North America Ins. Co. v.
15
Struve, 852 F.2d 1158, 1159-60, 1161 (9th Cir. 1988) (holding that "it cannot be seriously
16
maintained" that a suit seeking an injunction ordering a state official to approve the marketing of
17
insurance within the state was not against the sovereign); Aminoil U.S.A., Inc. v. Cal. State Water
18
Ctrl. Bd., 674 F.2d 1227, 1234 (9th Cir. 1982) (holding that a suit nominally against a federal
19
official, which sought a determination that the official acted beyond the scope of his statutory
20
authority was, in reality, a suit against the United States that would "preclude the [official] in his
21
official capacity from enforcing the [law]."); see also Palomar Pomerado Health Sys. v. Belshe,
22
180 F.3d 1104, 1108 (9th Cir. 1999) (holding that where plaintiff sought an injunction that
23
would restrain a state from reducing medical payment rates charged by plaintiff, relief would
24
interfere with public administration and was thus barred absent waiver of sovereign immunity).
25
26
27
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 22 of 36
II. INFORMATION SUBJECT TO THE STATE SECRETS PRIVILEGE AND
1 RELATED STATUTORY PRIVILEGES IS NECESSARY TO LITIGATE THIS
CASE AND MUST BE EXCLUDED FROM FURTHER PROCEEDINGS.
2
Apart from the jurisdictional defects of plaintiffs' statutory claims against the
3
Government, all of plaintiffs' claims in this case would require or risk the disclosure of
4
information properly protected by the DNI's assertion of the state secrets privilege. Plaintiffs'
5
Complaint quite clearly seeks disclosure of whether or to what extent the Government may have
6
utilized certain intelligence sources and methods after the 9/11 attacks in order to detect and
7
prevent further attacks. It also seeks disclosure of whether any of the alleged activities (if they
8
exist) are ongoing. As set forth below, the Director of National Intelligence (supported by the
9
NSA) has properly asserted privilege to protect such information from disclosure in order to
10
prevent exceptionally grave harm to national security.
11
A. The State Secrets Privilege Bars Use of Privileged Information In Litigation.
12
"The state secrets privilege is a common law evidentiary privilege that permits the
13
government to bar the disclosure of information if `there is a reasonable danger' that disclosure
14
will `expose military matters which, in the interests of national security, should not be
15
divulged.'" Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007) (quoting
16
United States v. Reynolds, 345 U.S. 1, 10 (1953)). The ability of the executive to protect state
17
secrets from disclosure in litigation has been recognized from the earliest days of the Republic.
18
See Totten v. United States, 92 U.S. 105 (1875); United States v. Barr, 25 F. Case 30 (C.C.D. Va.
19
1807); Reynolds, 345 U.S. at 7-9; Al-Haramain, 507 F.3d at 1196-97; Kasza, 133 F.3d at 1165-
20
66 (discussing cases); see also Hepting, 439 F. Supp. 2d at 98-981.9 The privilege protects a
21
broad range of information, including the "disclosure of intelligence-gathering methods or
22
capabilities." See Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983) (footnotes omitted);
23
accord Al-Haramain, 507 F.3d 1202-03 (holding that state secrets privilege precludes disclosure
24
25 9
The privilege has a firm foundation in the constitutional authority of the President
26 under Article II to protect national security information. See Dept. Of the Navy v. Egan, 484
U.S. 518, 527 (1988); United States v. Nixon, 418 U.S. 683, 710-11 (1974) (recognizing the
27 President's constitutional authority to protect national security information) (citing Reynolds);
see also El-Masri v. United States, 479 F.3d 296, 304 (4th Cir. 2007).
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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of whether plaintiffs were subject to foreign intelligence surveillance);10 see also Halkin v.
1
Helms, 690 F.2d 977, 990 (D.C. Cir. 1982) (Halkin II) (holding that state secrets privilege
2
protects intelligence source and methods involved in NSA surveillance). The privilege also
3
protects information that on its face may appear innocuous, but in a larger context could reveal
4
sensitive classified information. Kasza, 133 F.3d at 1166.
5
An assertion of the state secrets privilege "must be accorded the `utmost deference' and
6
the court's review of the claim of privilege is narrow." Kasza, 133 F.3d at 1166; see also Al-
7
Haramain, 507 F.3d at 1203 ("[W]e acknowledge the need to defer to the Executive on matters of
8
foreign policy and national security and surely cannot legitimately find ourselves second guessing
9
the Executive in this arena"). Aside from ensuring that the privilege has been properly invoked as
10
a procedural matter, the sole determination for the court is whether, "under the particular
11
circumstances of the case, `there is a reasonable danger that compulsion of the evidence will
12
expose military matters which, in the interest of national security, should not be divulged.'"
13
Kasza, 133 F.3d at 1166 (quoting Reynolds, 345 U.S. at 10). Moreover, the Ninth Circuit has
14
made clear that the focal point of review is whether the Government has identified a reasonable
15
danger to national security--not a court's own assessment as to whether information is a secret or
16
its disclosure would cause harm. See Al-Haramain, 507 F.3d at 1203 ("[J]udicial intuition . . . is
17
no substitute for documented risks and threats posed by the potential disclosure of national
18
security information."); see also CIA v. Sims, 471 U.S. 159, 180 (1985) ("It is the responsibility of
19
the [intelligence community], not that of the judiciary to weigh the variety of complex and subtle
20
factors in determining whether disclosure of information may lead to an unacceptable risk of
21
compromising the . . . intelligence-gathering process."); Halkin v. Helms, 598 F.2d 1, 8-9 (D.C.
22
Cir. 1978) (Halkin I) ("`[C]ourts, of course, are ill-equipped to become sufficiently steeped in
23
24
10
The Government recognizes that the Ninth Circuit in Al-Haramain remanded for
25 consideration of whether the state secrets privilege is preempted by the Foreign Intelligence
26 Surveillance Act, see Al-Haramain, 507 F.3d at 1205-06, and that this Court has ruled that the
privilege is preempted by the FISA, see Al-Haramain, 564 F. Supp. 2d at 1115-125. As set forth
27 below, the Government expressly preserves its position that the FISA does not preempt the state
secrets privilege or other statutory privileges.
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 24 of 36
foreign intelligence matters to serve effectively in the review of secrecy classifications in that
1
area.'") (quoting United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972)). In addition, in
2
assessing whether to uphold a claim of privilege, the court does not balance the respective needs
3
of the parties for the information. Rather, "[o]nce the privilege is properly invoked and the court
4
is satisfied that there is a reasonable danger that national security would be harmed by the
5
disclosure of state secrets, the privilege is absolute" and cannot be overcome by even the most
6
compelling need in the litigation. Kasza, 133 F.3d at 1166; see also Northrop Corp. v.
7
McDonnell Douglas Corp., 751 F.2d 395, 399 (D.C. Cir. 1984); Ellsberg, 709 F.2d at 57.
8
B. The United States Has Properly Asserted the State Secrets and
9 Related Statutory Privileges in this Case.
10 The United States has properly asserted and supported the state secrets privilege in this
11 case. First, as a procedural matter, "[t]here must be a formal claim of privilege, lodged by the
12 head of the department that has control over the matter, after actual personal consideration by the
13 officer." Reynolds, 345 U.S. at 7-8 (footnotes omitted). Here, the Director of National
14 Intelligence, who is head of the United States Intelligence Community, see 50 U.S.C. � 403
15 (b)(1); Al-Haramain, 507 F.3d at 1202 n.6, has formally asserted the state secrets privilege after
16 personal consideration of the matter. See Public and Classified In Camera, Ex Parte Declarations
17 of Admiral Dennis C. Blair, Director of National Intelligence.11 Second, the Government has
18 amply demonstrated in these submissions that there is a reasonable danger that disclosure of the
19 privileged information would cause exceptionally grave harm to national security.
20 Plaintiffs' allegations implicate several facts at the heart of the Government's privilege
21 assertion. First, plaintiffs allege that they have been personally subject to alleged NSA
22 intelligence activities. See e.g. Compl. �� 9, 10. But the DNI has explained that the disclosure of
23 information concerning whether or not plaintiffs have been subject to alleged NSA intelligence
24 activity would inherently reveal NSA intelligence sources and methods. Whether specific
25 individuals were targets of alleged NSA activities would either reveal who is subject to
26
11
27 The DNI's assertion of privilege is supported by the Public and Classified In Camera,
Ex Parte Declarations of Deborah A. Bonanni, Chief of Staff, National Security Agency.
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 25 of 36
investigative interest--helping that person to evade surveillance--or who is not--thereby
1
revealing the scope of intelligence activities as well as the existence of secure channels for
2
communication. See Public DNI Decl. � 13; Public NSA Decl. � 11-12.
3
Second, plaintiffs allege that they have been subject to a dragnet on the content of their
4
communications, as well as the collection of their communication records, as part of an alleged
5
presidentially-authorized program after the 9/11 attacks. See, e.g., Compl. � 7. But the facts
6
necessary to litigate these allegations are also properly excluded by the DNI's privilege assertion.
7
The DNI explains that, as the Government has previously indicated, the NSA's collection of the
8
content12 of communications under the now inoperative Terrorist Surveillance Program ("TSP")
9
was directed at international communications in which a participant was reasonably believed to
10
be associated with al Qaeda or an affiliated terrorist organization, and thus plaintiffs' allegation
11
that the NSA has indiscriminately collected the content of millions of communications sent or
12
received by people inside the United States after 9/11 under the TSP is false. See Public DNI
13
� 15; see also Public NSA Decl. � 14. But attempting to demonstrate that the TSP was not the
14
content dragnet plaintiffs allege, or that the NSA has not otherwise engaged in the alleged content
15
dragnet, would require the disclosure of highly classified NSA intelligence sources and methods
16
about the TSP and other NSA activities. See Public DNI Decl. � 15; see also Public NSA Decl.
17
�� 15-16. The DNI has also explained that confirmation or denial of whether the NSA has
18
collected communication records would cause exceptional harm to national security by disclosing
19
whether or not NSA utilizes certain intelligence sources and methods and thereby revealing the
20
capability and operations or lack thereof for foreign adversaries to exploit. See Public DNI Decl.
21
� 16; see also Public NSA Decl. � 15. Indeed, this Court has previously barred discovery into
22
allegations concerning communications records, see Hepting, 439 F. Supp. 2d at 997, and the
23
harms outlined by the DNI warrant no alteration of the Court's conclusion.13 Indeed, the Court in
24
25 12
The term "content" is used herein and by the DNI to refer to the substance, meaning or
26 purport of a communication, as defined in 18 U.S.C. � 2510(8). See Public DNI Decl. � 14 n.1.
13
27 While the Court in Hepting did not conclude that the state secrets privilege bars
disclosure of whether or not such a program exists or whether AT&T was involved, see Hepting,
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 26 of 36
Terkel v. AT&T Corp., 441 F. Supp. 2d 899, 917 (N.D. Ill. 2006), addressing an identical
1
allegation, upheld the Government's state secrets privilege assertion to preclude disclosure of
2
whether the Government was obtaining large quantities of communications records in order to
3
protect against the disclosure of information that would allow adversaries to gain valuable insight
4
into the Government's intelligence activities.
5
Finally, all of plaintiffs' claims require the disclosure of whether or not AT&T assisted the
6
Government in alleged intelligence activities, and the DNI again has demonstrated that disclosure
7
of whether the NSA has an intelligence relationship with a particular private company would also
8
cause exceptional harm to national security--among other reasons by revealing to foreign
9
adversaries which channels of communication may or may not be secure. See Public DNI Decl.
10
� 17; Public NSA Decl. � 16. Again, in Terkel, the court upheld the Government's privilege
11
assertion over whether AT&T in particular has disclosed communications records to the
12
Government. See 441 F. Supp. 2d at 917.
13
In sum, the DNI's privilege assertion is amply supported and clearly demonstrates there is
14
a reasonable danger that disclosure of the privileged information would harm national security.14
15
16
439 F. Supp. 2d at 977, the Government's privilege assertion demonstrates that plaintiffs'
17 communications records allegation concerns information that should be excluded from the
18 litigation, and claims based on this allegation should be dismissed.
14
19 Both the DNI and the NSA have asserted statutory privileges to protect the
information at issue, underscoring that the protection of the privileged information is not only
20 supported by the judgment of the Executive, but also pursuant to authority delegated by
Congress. First, Section 6 of the National Security Agency Act of 1959, Pub. L. No. 86-36, � 6,
21 73 Stat. 63, 64, codified at 50 U.S.C. � 402 note, forecloses "disclosure of the organization or
any function of the National Security Agency, of any information with respect to the activities
22
thereof. . . ." Second, Section 102A(i)(1) of the Intelligence Reform and Terrorism Prevention
23 Act of 2004, Pub. L. No. 10-458, 118 Stat. 3638 (Dec. 17, 2004), codified at 50 U.S.C. � 403-
1(i)(1), requires the Director of National Intelligence to protect intelligence sources and methods
24 from unauthorized disclosure. The information subject to these statutory privileges is co-
extensive with the assertion of the state secrets privilege by the DNI. See Public DNI Decl. � 10;
25 Public NSA Decl. � 10. Notably, in People for the American Way Found v. NSA ("PFAW"), 462
26 F. Supp. 2d 21 (D.D.C. 2006), the court applied Section 6 of the National Security Act to bar
disclosure under FOIA of information related to the operation of the Terrorist Surveillance
27 Program, including whether the plaintiffs in that case had been subject to TSP surveillance, and
recognized as well that this information would be protected by the DNI's statutory privilege. See
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 27 of 36
III. WHERE STATE SECRETS ARE NEEDED TO LITIGATE PLAINTIFFS'
1 CLAIMS, THE CASE CANNOT PROCEED.
2 Once the Court has upheld a claim of the state secrets privilege, the evidence and
3 information identified in the privilege assertion is "completely removed from the case," Kasza,
4 133 F.3d at 1166, and the Court must undertake a separate inquiry to determine the
5 consequences of this exclusion on further proceedings. First, if the plaintiffs cannot establish
6 their standing as a factual matter without the excluded state secrets, then the privilege assertion
7 (unless preempted) would require dismissal. See Al-Haramain, 507 F.3d at 1204-05. Similarly,
8 if the plaintiffs cannot make out a prima facie case in support of their claims absent the excluded
9 state secrets, the court should enter summary judgment for the United States because the evidence
10 needed to adjudicate the merits is unavailable. See Kasza, 133 F.3d at 1176 (affirming entry of
11 summary judgment for the United States on state secrets privilege grounds). Likewise, if the
12 privilege "`deprives the defendant of information that would otherwise give the defendant a valid
13 defense to the claim, then the court may [also] grant summary judgment to the defendant.'"
14 Kasza, 133 F.3d at 1166 (quoting Bareford, 973 F.2d at1141) (emphasis in original); accord
15 Zuckerbraun v. General Dynamics Corp., 935 F.2d 544, 547 (2d Cir. 1991).
16 In addition, courts have also considered the related question of whether the "very subject
17 matter" of the case warrants dismissal as a threshold matter. See Al-Haramain, 507 F.3d at 1197-
18 1201; see also Kasza, 133 F.3d at 1166 (citing Reynolds, 345 U.S. at 11 n.26). The Ninth Circuit
19 has recognized that "a bright line does not always separate the subject matter of the lawsuit from
20 the information necessary to establish a prima facie case," and that "in some cases there may be
21 no dividing line." Al-Haramain, 507 F.3d at 1201.15 The court also observed that in some cases
22
23
id. at 29, 31 & n.8. Likewise, in Wilner v. National Security Agency, No. 07 Civ. 3883, 2008
24 WL 2567765, at **4-5, (S.D. N.Y. June 25, 2008) (appeal pending), the court applied Section 6
to bar disclosure of whether the plaintiffs had been subject to TSP surveillance.
25
15
26 See, e.g., Kasza, 133 F.3d at 1170 (finding that the very subject matter of the case is a
state secrets because "[n]ot only does the state secrets privilege bar [plaintiff] from establishing
27 her prima facie case on any of her eleven claims, but any further proceedings in this matter
would jeopardize national security").
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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"the suit itself may not be barred because of its subject matter and yet, ultimately, the state secrets
1
privilege may nonetheless preclude the case from proceeding to the merits." Id.16 Here, plaintiffs
2
do not challenge the publicly acknowledged Terrorist Surveillance Program, but allege that other
3
"dragnet" activities were authorized after 9/11 and are ongoing, including the alleged collection
4
of communication records. Dismissal of these allegation would thus be appropriate on the ground
5
that its very subject matter would inherently risk or require the disclosure of state secrets. But, to
6
be clear, the Government does not seek dismissal merely on this basis, but seeks summary
7
judgment, as permitted by Kasza, on the ground that the Government's privilege assertions
8
exclude the very information necessary for plaintiffs to establish their standing or a prima facie
9
case, as well as information relevant to the defense of both the Government and personal capacity
10
defendants.
11
A. Standing Cannot be Established or Refuted Without the
12 Disclosure of State Secrets and Harm to National Security.
13 The fundamental, threshold issue of plaintiffs' standing cannot be adjudicated without
14 state secrets. Plaintiffs, of course, bear the burden of establishing standing and must, at an
15 "irreducible constitutional minimum," demonstrate (1) an injury-in-fact, (2) a causal connection
16 between the injury and the conduct complained of, and (3) a likelihood that the injury will be
17 redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992).
18 In meeting that burden, plaintiffs must demonstrate an actual or imminent--not speculative or
19 hypothetical--injury that is particularized as to them; they cannot rely on alleged injuries to
20 unnamed members of a purported class. See, e.g., Warth v. Selden, 422 U.S. 490, 502 (1975); see
21 also Ellsberg, 709 F.2d at 65. Moreover, to obtain prospective relief, plaintiffs must show that
22 they are currently subject to an alleged activity or otherwise "immediately in danger of sustaining
23 some direct injury" as the result of the challenged conduct. City of Los Angeles v. Lyons, 461
24
16
Al-Haramain itself was such a case. The Ninth Circuit held that the "very subject
25 matter of the case" was not a state secret based on several public disclosures by the Government
26 as to the existence of the Terrorist Surveillance Program. See 507 F.3d at 1197-1200. But the
court nonetheless held that the case would have to be dismissed on the ground that the state
27 secrets privilege precluded plaintiffs from establishing their standing (unless the FISA
preempted that privilege). See id. at 1205.
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 29 of 36
U.S. 95, 102 (1983). Plaintiffs cannot rest on general allegations in their Complaint, but must be
1
able to set forth specific facts that establish their standing to obtain the relief sought. See Lewis v.
2
Casey, 518 U.S. 343, 358 (1996) (quoting Lujan, 504 U.S. at 561).
3
Here, the DNI has properly asserted privilege over facts essential for plaintiffs to establish
4
their standing, or for the Government to respond to their allegations of injury,17 and courts have
5
consistently recognized the dismissal is necessary in these circumstances. In Al-Haramain, the
6
Ninth Circuit upheld the Government's assertion of the state secrets privilege (unless otherwise
7
preempted by FISA) and found that it foreclosed plaintiffs there from establishing their standing
8
as a factual matter. See 507 F.3d at 1205.18 Likewise, in Terkel, supra, the court dismissed the
9
very claim at issue here--whether AT&T had disclosed communication records to the
10
Government--because the state secrets privilege foreclosed plaintiffs from establishing their
11
standing. See 441 F. Supp. 2d at 919-20. The Sixth Circuit has also rejected standing based on a
12
"well founded belief"--as opposed to actual evidence-- that communications were being
13
intercepted under the TSP. See American Civil Liberties Union v. NSA, 493 F.3d 644, 656, (6th
14
Cir. 2007) (Batchelder, J.) (where states secrets privilege prevents discovery of evidence of
15
standing, allegations of harm held to be speculative and insufficient); see also id. at 692
16
(Gibbons, J. concurring) (dismissal required where state secrets privilege prevents plaintiffs from
17
establishing whether they were subject to TSP or government from presenting evidence to refute
18
that allegation).19
19
20 17
The Government and personal capacity defendants likewise would not be able to
21 present any evidence in an attempt to disprove plaintiffs' standing without information covered
by the state secrets privilege assertion (e.g., whether or not a particular person's communications
22 were intercepted). See Halkin I, 598 F.2d at 11 (rejecting contention that acquisition of
plaintiff's communication may be presumed from certain facts because "such a presumption
23 would be unfair to the individual defendants who would have no way to rebut it").
24 18
Again, the Government preserves its position that FISA Section 1806(f) does not
preempt the state secrets privilege or authorize a court to invoke its procedures in order to
25 adjudicate whether or not a party has in fact been subject to surveillance and has standing.
26 19
A similar state secrets assertion was upheld in Halkin II. See 690 F.2d at 998 (holding
27 that plaintiffs' inability to adduce proof of actual acquisition of their communications rendered
them incapable of making the showing necessary to establish their standing to seek relief); see
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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The Government's privilege assertion also precludes plaintiffs from establishing standing
1
as to any statutory claim that may survive the Government's motion to dismiss. For each cause of
2
action, plaintiffs must establish, as a threshold matter, that they have been "aggrieved"--that is,
3
subject to the alleged action being challenged.20 Because plaintiffs cannot adduce proof that the
4
content of their communications has been collected by the Government, or that their
5
communications records likewise have been obtained by the Government, the most basic element
6
of every claim--their standing as "aggrieved persons"--cannot be established.
7
It bears emphasis that plaintiffs' allegation of a "dragnet" of surveillance by the
8
NSA--the alleged interception of communication content and records of millions of domestic and
9
international communications made by ordinary Americans, see, e.g. Compl. � 7--does not
10
establish their standing. Even if that allegation were sufficient to avoid dismissal on the
11
pleadings, plaintiffs would be required to demonstrate that they personally have been subject to
12
the alleged communications dragnet, and the information relevant to doing so is properly
13
protected by the state secrets privilege. Plaintiffs cannot establish the existence of an alleged
14
content dragnet (previously denied by the Government, see Hepting, 439 F. Supp. 2d at 996), or
15
its application to them personally without the disclosure of NSA intelligence sources and
16
17 also Ellsberg, 709 F.2d at 51 (holding that dismissal was warranted where a plaintiff could not,
18 absent recourse to state secrets, establish that he was actually subject to surveillance). See also
PFAW, 462 F. Supp. 2d at 28-32; Wilner, 2008 WL 2567765, at **4-8 (barring disclosure under
19 FOIA of whether plaintiffs had been subject to surveillance under the TSP).
20
20 With respect to plaintiffs' claim for damages under FISA Section 1810, the term
"aggrieved person" is "coextensive [with], but no broader than, those persons who have standing
21 to raise claims under the Fourth Amendment with respect to electronic surveillance," H.R. REP.
NO. 95-1283, at 66 (1978); see also Rakus v. Illinois, 439 U.S. 128, 132 n.2 (1978) (a party
22
raising a Fourth Amendment claim "must allege such a personal stake or interest in the outcome
23 of the controversy as to assure the concrete adverseness which Art. III requires."). Similarly,
under the Wiretap Act, 18 U.S. C. � 2510, civil actions may be brought only by a "person whose
24 . . . communication is intercepted, disclosed, or intentionally used." 18 U.S.C. � 2520(a). The
Stored Communication Act likewise limits it civil remedies to "person[s] aggrieved" under the
25 statute, id. � 2707(a); see id. 2711(1) (adopting � 2510(11) definition of "aggrieved person" as
26 one "who was a party to any intercepted . . . communication" or "a person against whom the
interception was directed"). Each of these provision reflects the fundamental point that only
27 persons who can establish factually that their own rights were injured by the actual interception
or disclosure of their own communications (or records) have Article III standing to proceed.
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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methods. Similarly, plaintiffs cannot establish standing based on allegations that records
1
concerning their communications were collected as part of (or apart from) the alleged
2
communications dragnet. As this Court noted in Hepting, "the government has neither confirmed
3
nor denied whether it monitors communication records and has never publicly disclosed whether
4
[such a program] actually exists," see 493 F. Supp. 2d at 997, and the Court further recognized,
5
in barring discovery on this claim in Hepting, that:
6
Revealing that a communication records program exists might
7 encourage that terrorist to switch to less efficient but less detectable
forms of communication. And revealing that such a program does
8 not exist might encourage a terrorist to use AT&T services when he
would have done so otherwise.
9
Id.; accord, Terkel, 441 F. Supp. 2d at 917. The Government's privilege assertion as to this
10
allegation again demonstrates the exceptional harm to national security that would result from any
11
further proceedings on this allegation. For this reason, plaintiffs cannot sustain their burden of
12
showing that such a program exists, much less satisfy their burden of establishing standing by
13
showing that their communication records were collected under such an alleged program.
14
B. The Disclosure of Privileged Information Would Also be
15 Required to Adjudicate Plaintiffs' Claims on the Merits.
16 Beyond the fact that plaintiffs cannot obtain evidence to establish standing, still more state
17 secrets would be required to litigate each of plaintiffs' claims on the merits. For example,
18 plaintiffs' "content" surveillance claims would require proof not only of an alleged interception of
19 their communications, but that any such interception met the highly specific definition of
20 "electronic surveillance" under the FISA, which includes inter alia, interception of a
21 communication on a wire inside the United States. See 50 U.S.C. � 1809; 1801(f). This would
22 require disclosure of specific facts concerning where and how any communications were
23 intercepted--information that would reveal precise intelligence sources and methods under which
24 content may be captured by the Government (if at all). Another element of plaintiffs' FISA claim
25 would require proof that the Government intentionally disclosed or used information obtained
26 under color of law by electronic surveillance, knowing or having reason to know the information
27 was obtained through unauthorized electronic surveillance. See 50 U.S.C. � 1809. Thus,
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 32 of 36
assuming the content of their communications had been intercepted at all, plaintiffs still would
1
have to show an intentional disclosure or use of that information to support this aspect of their
2
FISA claim--information that, again, would either reveal the existence of foreign intelligence
3
interest in plaintiffs or their communicants or, conversely, the lack thereof--in either case
4
revealing the scope of NSA intelligence activities.21
5
Similarly, for their ECPA claims, plaintiffs would have to show that the Government
6
required an electronic communication service provider to disclose the content of plaintiffs'
7
communications in electronic storage, and whether or not such a disclosure occurred pursuant to a
8
court order or statutory authority. See 18 U.S.C. � 2703(a), (b). With respect to plaintiffs' ECPA
9
claim concerning the alleged collection of communication records, see 18 U.S.C. � 2703(c), not
10
only must there be official confirmation or denial of the existence of the alleged activity but, if
11
that activity were confirmed, plaintiffs must adduce proof concerning the scope and operation of
12
any such program, including, for example, whether it actually encompassed plaintiffs' records,
13
when and how it may have done so, whether any such records were put to any use and in what
14
manner, and again whether any such action was authorized by court order or statute. In any
15
event, litigation of plaintiffs' ECPA claims would require or risk disclosure of intelligence
16
sources and methods as to whether or not, or when and how, the content of plaintiffs' wire or
17
electronic communications, or records of their communications, were obtained by the
18
Government.
19
Plaintiffs' related Fourth and First Amendment claims both put at issue not only whether
20
plaintiffs' individual communications (content or records) were collected, but whether there
21
existed a reasonable basis for the particular search or seizure, whether exigent circumstances
22
23
21
24 Likewise, plaintiffs' Wiretap Act claims would require proof that one of plaintiffs'
wire or electronic communications, as defined in the Act (see 18 U.S.C. � 2510 (1), (12)), had
25 been intercepted--information that would reveal particular intelligence methods were or were
26 not used to target plaintiffs' communications. If such an interception had occurred, plaintiffs
must then show that the content of their communications, defined to mean the "substance,
27 meaning or purport" of the communication (see 18 U.S.C. � 2510(8)), was knowingly disclosed
and used in violation of the Act. See 18 U.S.C. � 2511(1)(c) and (d).
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 33 of 36
warranted any action at issue, and what specific information was actually obtained, viewed, used,
1
or disclosed by the Government. Fourth Amendment claims require fact-specific determinations,
2
including whether a search was undertaken, under what authority, whether it violated an
3
expectation of privacy, and why the Government may have acted. See, e.g., O'Connor v. Ortega,
4
480 U.S. 709, 718 (1987) ("`what is reasonable depends on the context within with a search takes
5
place'") (quoting New Jersey v. T.L.O., 469 U.S. 325, 334-35 (1985)). And if the Government
6
obtained only non-content informational records, there may be no Fourth Amendment issue at
7
all.22
8
In addition, as to all of the foregoing claims, the plaintiffs again would have to obtain
9
confirmation or denial as to whether AT&T participated in the alleged activity, as well as where,
10
how, and to what extent, to determine if any such participation involved plaintiffs'
11
communications. The DNI has set forth a more than reasonable basis to conclude that harm to
12
national security would result from the disclosure of whether the NSA has worked with any
13
telecommunications carrier in conjunction with the alleged activities. Indeed, this Court
14
previously has observed that it is not in a position to second-guess the DNI's judgment regarding
15
a terrorist's risk preferences for picking a communications carrier--a judgment that might depend
16
on an array of facts not before the Court. Hepting, 439 F. Supp. 2d at 990, 997.
17
Plaintiffs' allegations with respect to AT&T are also foreclosed by the Totten/Tenet
18
doctrine, in which the Supreme Court has made clear that litigation that would risk the disclosure
19
of an alleged espionage relationship is barred per se.
20
The possibility that a suit may proceed and an espionage relationship may be
21 revealed, if the state secrets privilege is not found to apply, is unacceptable: "Even
a small chance that some court will order disclosure of a source's identity could
22 well impair intelligence gathering and cause sources to `close up like a clam.'"
23
22
24 See Smith v. Maryland, 442 U.S. 735, 742-46 (1979) (holding that individuals have no
legitimate expectation of privacy in the numbers they dial on the telephone and pen register
25 search of such information does not constitute a search for Fourth Amendment purposes); United
26 States v. Forrester, 512 F.3d 500,10 (9th Cir. 2007) ("[E]-mail and Internet users have no
expectation of privacy in the to/from addresses of their messages or the IP addresses of the
27 websites they visit because they should know that this information is provided to and used by
Internet service providers for the specific purpose of directing the routing of information." ).
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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See Tenet v. Doe, 544 U.S. 1, 11 (2005) (quoting CIA v. Sims, 471 U.S. at 175). Plaintiffs'
1
allegations with respect to AT&T must be dismissed for this independent reason as well.23
2
Finally, adjudication of the merits would require disclosure of whether any of the alleged
3
activities (if they exist) are ongoing, or occurred only during certain periods, or were authorized
4
at some point by statute or court order. Disclosure of such information would be relevant not
5
only to the question whether any prospective relief is appropriate, but also whether plaintiffs may
6
seek damages for any past alleged violation.24 In either case, such disclosures again would reveal
7
a range of facts concerning whether, when, how, why, and under what authority the NSA may
8
have utilized certain intelligence sources and methods--information that is subject to the
9
Government's privilege assertion and cannot be disclosed without risking exceptionally grave
10
harm to national security.
11
IV. LITIGATION OF PLAINTIFFS' CLAIMS CANNOT PROCEED UNDER FISA.
12
Finally, as noted above, the Government reserves its position that the FISA does not
13
preempt the state secrets privilege. We recognize the Court has addressed this issue in the Al-
14
Haramain action and is unlikely to change its view. Thus, the Government will not brief the
15
16
17 23
In enacting the FISA Act Amendments Act of 2008, the Senate Select Committee on
18 Intelligence ("SSCI") found that the "details of the President's program are highly classified"
and that, as with other intelligence matters, the identities of persons or entities who provide
19 assistance to the U.S. Government are protected as vital sources and methods of intelligence."
See S. Rep. 110-209 at 9 (Dkt. 469-2). Notably, the SSCI expressly stated that "[i]t would be
20 inappropriate to disclose the names of the electronic communication service providers from
which assistance was sought, the activities in which the Government was engaged or in which
21 providers assisted, or the details regarding any such assistance," because "identities of persons or
22 entities who provide assistance to the intelligence community are properly protected as sources
and methods of intelligence." Id.
23 24
For example, plaintiffs' "separation of powers" claim seeks only prospective equitable
24 relief as to ongoing activities allegedly authorized by the President pursuant to his Article II
powers. See Compl., Count XVII. But the sole basis for this allegation remains media reports
25 concerning activities allegedly authorized in 2001, and the Government's acknowledgment of
26 the Terrorist Surveillance Program in 2005. The TSP ended in 2007, and plaintiffs' allegations
as to any ongoing "dragnet" authorized by the President is sheer speculation that could not be
27 addressed in further litigation without the disclosure of classified intelligence sources and
methods.
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
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Case 3:08-cv-04373-VRW Document 18 Filed 04/03/2009 Page 35 of 36
matter again at length but incorporates by reference its prior detailed discussion of the issue.25 In
1
sum, we simply reiterate our position that the state secrets privilege, which is rooted in the
2
constitutional authority of the President as well as the common law, cannot be preempted absent
3
an unmistakably clear directive by Congress that it intended to do so. Nothing in the text or
4
legislative history of the FISA says anything about preempting the state secrets privilege--let
5
alone reflects a clear and unambiguous intention to do so. In particular, Section 1806(f) of FISA
6
only applies where the Government has acknowledged surveillance and seeks to use surveillance
7
evidence in a court proceeding. See 18 U.S.C. � 1806 ("Use of Information"). Most importantly,
8
that provision cannot be read (and has never been applied) to compel the Government to disclose
9
(or risk the disclosure of) information concerning intelligence sources and methods that the
10
Government chooses to protect.
11
CONCLUSION
12
For the foregoing reasons, the Court should dismiss plaintiffs' statutory claims for lack of
13
jurisdiction, uphold the Government's privilege assertions, enter summary judgment for the
14
Government Defendants, and dismiss the case as to all defendants and all claims.
15
April 3, 2009 Respectfully Submitted,
16
MICHAEL F. HERTZ
17 Acting Assistant Attorney General
18 DOUGLAS N. LETTER
Terrorism Litigation Counsel
19
JOSEPH H. HUNT
20 Director, Federal Programs Branch
21 VINCENT M. GARVEY
Deputy Branch Director
22
23 s/ Anthony J. Coppolino
ANTHONY J. COPPOLINO
24 Special Litigation Counsel
25
26 25
The Section 1806(f) issue was addressed at length by the Government in the Al-
27 Haramain action. See Defs. 2d MSJ at 12-24 (Dkt. 17, 07-109-VRW); and Defs. 2d MSJ Reply
at 8-24 (Dkt. 29 in 07-109-VRW).
28 Government Defendants' Notice of Motion to Dismiss and For Summary Judgment and Memorandum
Jewel et al. v. National Security Agency et al., Case No. 08-cv-4373-VRW